Law 120Learning Essential:2.2 identify and explain elements of a criminal offence and of selected specific offences

Federal Statute that reflects the social values of Canadians which is amended (changed) to reflect society’s changing values.

internet distribution of child pornography removal of criminal record for personal

possession of Marijuana.

The Criminal Code is the main body of criminal law and identified hundreds of acts that are considered criminal. The offences listed in the Code are worded very precisely so that citizens are not wrongfully arrested on a criminal charge. The elements required by the Crown must be worded precisely so that they can obtain a proper conviction.

Three levels of offences:1. Summary Conviction 2. Hybrid3. Indictable (in-DIE-table)

Summary Conviction Offences

Minor offences generally with light penalty

▪ conviction of summary conviction can be fined up to $2000 and/or imprisoned for up to 6 months

Cases pass through courts quickly. Tried by judge only

Indictable Offences

Serious crimes carrying heavier penalties

▪ Maximum penalty ranges from 2 years to life imprisonment

▪ Sometimes indictable offences have minimum sentences (robbery with firearm -4 years; murder life imprisonment)

Method of trial differs according to severity of the sentence of the offence▪ Less than 5 years – trial in Provincial Court or Superior Court by judge

only

▪ More than 5 years – accused can choose for trial in Superior Court with judge or judge and jury.

▪ Most serious indictable offences (murder, treason) must be tried in Superior court (see chart p. 222)

Hybrid (Dual Procedure) Offences Crown decides whether to proceed as a

summary conviction or indictable offence

Always treated as indictable until Crown lays charge in court.

Depends on the circumstances of the case

▪ i.e. Theft under $5000 – first offence of stealing something worth $100 most likely Crown would proceed as summary instead of indictable.

Page 224 Case: R v. Quinlan #1-2 Building Your Understanding #1-4(a)

Violent crimes are offences that harm the human body in some way.

Approximately 13 percent of all Criminal Code offences are of a violent nature.

Homicide

Murder

The Criminal Code defines homicide in the following way.

222. (1) A person commits homicide when directly or indirectly, by any means, causes the death of a human being.

Two main types of homicide: culpable (‘blameable’) – killing for which the

accused can be held legally responsible. Ex. Murder, infanticide, manslaughter

non-culpable – killing for which the accused can not be held legally responsible. Ex. Accident, soldier under orders during war, self-defence

Homicide

Killing another human being, directly or indirectly is homicide. Homicide is a criminal offence if it is culpable (deserving of blame) Murder, manslaughter and infanticide are culpable homicide. Non-culpable homicide is not criminal and occurs when death is caused by a complete accident or in self-defence.

Murder The most serious violent crime is

murder. An accused may be found guilty even if he/she did not have intent to kill.

ex. If Ann tries to shoot Bill but her shot kills Fred instead, Ann is still guilty of murder even though she didn’t intent to kill Fred. If Bob wants revenge on Jim by committing arson, and the fire kills May who was in the building, Bob is still charged with murder even though he didn’t have intent to hurt May.

In Canada there are two classes of murder: first-degree murderand second-degree murder.

First-degree murder occurs if any one of the following situations exists:

murder is planned and deliberate. ex. murder for hire planned and deliberate are not the same. Planned refers to a “scheme or design” that has been thought out carefully. The person must have carefully considered and weighed the consequences of his/her actions. Deliberate means considered and not impulsive.

victim is a law enforcement agent, such a police officer or someone working in a prison.

death occurs while another offensive crime is being committed. i.e. hijacking, sexual assault, threats or causing bodily harm to a third party, kidnapping

murder caused while committing or attempting to commit and offence related to criminal harassment.

murder committed while using explosives to commit an offence in association with a criminal organization

murder committed while committing, or attempting to commit, an indictable offence that could also be considered a terrorist

activity.

Murder that does not fit into any of the above categories, but is still caused intentionally, is classified as second-degree. The minimum sentence for both first-degree and second-degree murder is life imprisonment.

The mandatory sentence for both first degree and second degree murder is life imprisonment.

only difference is the date at which the offence can apply for parole.

Offender convicted of First degree murder serves 25 years before qualifying for parole.

An offender convicted of second degree murder can usually apply for parole after serving 10 years.

Infanticide is the killing of a newborn by his or her mother.

means the accused has not yet recovered from the effects of childbirth and is suffering from:

depression or

mental disturbance. The maximum punishment is imprisonment for

5 years. Infanticide is seldom seen in the courts.

The Criminal Code defines manslaughter as any culpable homicide that is not murder or infanticide.

The actus reus of manslaughter consists of killing someone through a wrongful act, even if the killing of the individual was not intentional.

Ex. Nelson and Jimbo are fighting in a barroom brawl. Nelson punches Jimbo in the jaw, knocking him backwards and causing him to hit his head on the edge of the pool table. Jimbo dies later that night from internal bleeding caused by the severe concussion. Nelson wanted to hit Jimbo but didn’t mean to kill him but Jimbo died as a direct result of Nelson’s actions. Nelson will be arrested and charged with manslaughter.

The mens rea of this offence is that any reasonable person could have foreseen that the wrongful act would pose a risk of bodily harm that was neither insignificant nor temporary.

To be found guilty of manslaughter, the offender did not foresee that the wrongful act could result in death.

Sometimes, people charged with murder are convicted of manslaughter. This happens if the accused successfully uses one of two defences:

1. Provocation

It must be shown that the accused caused another’s death “in the heat of passion caused by sudden provocation.” The provocation must be a wrongful act or insult, and must be something that would cause an ordinary person to lose self-control (except for drugs and alcohol). If, after being provoked, the accused has time to plan the killing of the other person, the charge will be murder not manslaughter.

2. Intoxication Intoxication is often significant in

murder cases because being drunk or “high” can affect a person’s ability to predict the consequences of his or her intentions. The Crown must prove both the killing and the necessary intent if the accused uses intoxication as a defence. If there is doubt as to the ability to form the necessary intent because the accused ingested alcohol or drugs, the accused must be found guilty of manslaughter, not murder.

It is an offence to counsel or help anyone to commit suicide. Until 1972, it was also an offence to attempt suicide. Assisted suicide is a controversial issue.

Some chronically ill people have argued they have the right to assistance if they want to end their suffering. Disability groups often oppose legalizing assisted suicide because they believe peoplewho have disabilities may be pressured to end their lives.

A related issue is euthanasia (mercy killing). This means one person acts to end the life of another. There are different levels of consent for euthanasia: voluntary and involuntary euthanasia.

Voluntary euthanasia occurs when a patient expresses the wish to die either in writing or verbally. Involuntary euthanasia would occur if the individual is unable to make his/her wishes known or does not want to die despite his/her condition.

Assisted suicide, voluntary and involuntary suicides are all considered homicide under the Criminal Code. However, cases involving elderly, disabled spouses are often dealt with compassionately by the courts.

Under Canadian law, patients are allowed to refuse treatment if they are of sound mind. The problem is if the patient is not of sound mind. Patients are encouraged in some provinces to sign care directives so their guardians will know what they want. Without a care directive, legal guardians and physicians make the decisions based on medical ethics and human rights legislation.

The most common form of violent crime is assault (76% of all reported violent crimes). The Criminal Code classifies assault according to three levels.

1. Assault

2. Assault with a weapon or causing bodily harm

3. Aggravated Assault

Level one of assault is a hybrid offence and carries a maximum penalty of 5 years’ imprisonment. Ex. Pushing someone or threatening someone with violence.

Words by themselves cannot be considered an assault; they must be accompanied by an act or gesture. Assault occurs when any one of the following occurs:

Intentionally applying force to another person, either directly or indirectly, without that person’s consent.

Attempting or threatening by act or gesture to apply force.

Accosting or impeding another person, or begging, while opening wearing or carrying a weapon or an imitation of a weapon

Level two of assault is assault with a weapon or causing bodily harm. This type of assault is defined as injuring a person in a way that serious consequences for the victim’s health or comfort. It may also involve carrying, using, or threatening to use a weapon. This is a hybrid offence and carries a maximum penalty of 10 years’ imprisonment.

Level three of assault is the most violent form and is called aggravated assault. Aggravated assault is defined as wounding, maiming, disfiguring, or endangering the life of the victim. This is an indictable offence and carries a maximum penalty of 14 years in prison.

Sexual Assault

Before 1983 only two types of sexual assault were in the Criminal Code: rape and indecent assault. In 1983, new legislation was introduced that reclassified sexual assault into 3 levels or categories similar to those used in regular assault cases. These changes were made for several reasons. First, the Justice Department wanted to emphasize that ‘sexual assault involves physical violence against another person.” Second, it wanted to recognize that spouses could be charged with sexual assault and that the victims could be either male or female.

The three levels of sexual assault are:Level 1 – Sexual AssaultLevel 2 – Sexual Assault with a weapon, threats to a third party or causing bodily harmLevel 3 – Aggravated Sexual Assault

The first level of sexual assault is the most common offence and the one where the victim suffers the least physical injury. Although not specifically defined in the Criminal Code, generally speaking, it may be defined as a violation of the victim’s sexual integrity which usually involves touching of a sexual nature that is not invited or consensual. 97% of all sexual assault cases fall into this category which is a hybrid offence and carries a maximum sentence of 10 years in prison.

Sexual Assault

The second level of sexual assault is sexual assault with aweapon, threats to a third party, or causing bodilyharm and involves a sexual assault in combination withthreats or the use of weapons, or that results in bodilyharm. This is an indictable offence and carries amaximum sentence of 14 years.

The third level of sexual assault is aggravated sexualassault which is defined as the maiming, wounding,disfiguring or endangering the life of the victim of sexualassault. Because this is the most violent level of sexualassault an offender can receive up to life imprisonment.

Sexual Assault

Consent is a valid defence to the charge of sexual assault if the accused person had an honest and reasonable, even if mistaken belief that the victim was consenting to sexual contact. However consent cannot be used as a defence in three instances:

•when a victim says no, either by words or conduct, such as directly repulsing physical advances or struggling to escape an embrace

•when the accused is intoxicated and not able to determine if consent has been given

•when the accused person was reckless and deliberately blind to the victim’s responses or failed to take reasonable steps to find out if the victim was consenting

Most motor vehicle offences, such asspeeding or failing to stop at a red light areunder provincial jurisdiction.

As a result, they are not addressed in the CriminalCode.

However, because of their seriousness, thefollowing offences ARE contained in theCriminal Code.

A ‘motor vehicle’ is defined in the Criminal Codeas a vehicle that is drawn, propelled, or driven byany means other than muscular power. Such vehicles include cars, snowmobiles,

motorcycles, motor boats and all-terrain vehicles.

To convict an accused of dangerous operation ofa motor vehicle, the Crown must prove that thesafety or lives of others were endangeredbecause the driver failed to exercise the samecare a prudent driver would have exercisedunder the same conditions.

This offence can be committed in a number of ways, depending onthe manner and circumstances in which the vehicle is operated. Ex. Bob is late for work. On his way, he drives over the speed limit

and passes another motorist on the double line, forcing an on-coming car off the road.

Dangerous operation of a motor vehicle is a hybrid offencepunishable for a term of up to 5 years.

Dangerous operation causing bodily harm is an indictable offencewith a maximum punishment of 10 years.

If someone driving in a dangerous fashion causes a death, themaximum penalty is 14 years in prison.

According to the Criminal Code, anyone who is involved in amotor vehicle accident and does not stop, offer assistance,and give his or her name and address is presumed to showintent to escape civil or criminal liability.

This person may be charged with failure to stop at the sceneof an accident. Commonly known as ‘hit and run’, this is ahybrid offence punishable by a term of up to 5 years.

The maximum punishment for a hit-and-run accidentcausing bodily injury is 10 years. If the accident causes adeath, the offender can be sentenced to a maximum of life inprison.

The proof that a driver is impaired, either by drugsor alcohol, can come from a number of sources. A person’s erratic driving, slurred speech, or inability

to walk a straight line, or the smell of alcohol onhis/her breath can serve as proof of the driver’simpairment.

a breath or blood test which measure amount ofalcohol in person’s bloodstream.

an offence to drive or to have ‘care or control’ of amotor vehicle while the amount of alcohol in thebloodstream exceeds 80 milligrams in 100millilitres of blood.

If police have reasonable and probable grounds tobelieve an impaired person is or has beenoperating a motor vehicle within the last threehours, they may demand person take aBreathalyzer test.

If cannot take the test because of an existing medicalproblem may be asked to give a blood sample instead.

blood sample may only be taken by qualified medicalpractitioners who is satisfied that test will notendanger the subject’s health.

Operating a motor vehicle while impaired andrefusing to provide a breath or blood sample areboth hybrid offences. The severity of thepunishment increases for subsequent offences.

Impaired driving causing bodily harm is anindictable offence with maximum penalty of 10years in prison.

If an impaired driver kills someone, themaximum penalty is life in prison.

PERIOD 3

Page 229 - R. v. Turner #1-3

Page 232 -R. v. Ewanchuk#1-3

Page 234 - R. v. Taylor #1-3

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PERIOD 6

Page 227 - R v. Effert #1-2

Page 233 -R. v. Ewanchuk#1-3

Page 235 - R. v. Nightingale #1-3

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